Michigan Criminal Defense Lawyer Blog
A recent email inspired this article. The writer was seeking DUI advice, but expressed an interest in handling the case without DUI lawyer, or any lawyer, for that matter. Admittedly, my first thought was along the lines of then what are you contacting us for? We’re DUI lawyers; we get hired to handle cases. I imagined someone calling a heating and cooling company and saying “How do I replace my water heater without having to hire you?” As I thought about it, though, I became concerned about the huge risk this person was facing, more than anything else.
Here’s the actual message that was left: “I got an OWI on Friday. The cop said it’s my first offense. I’m most likely good without a lawyer but I’d like advice please.” The big issue here is that this person – and nobody facing any kind of DUI or criminal charge – is “good” without a lawyer. Even a legal aid clinic would decline just emailing someone advice. In fact, when a person is adamant about representing themselves in a criminal proceeding, courts will almost always appoint a lawyer to at least sit with them as “stand-by” counsel.
As we’ll see, there is a lot of truth in the old saying that “A little knowledge is a dangerous thing.” To be sure, the real risk (especially in a 1st offense DUI) of handling one’s own case is NOT getting locked up in jail for any extended period of time. That’s almost certainly no going to happen. Instead, the big worry is that a person may walk into a conviction that could be avoided, or otherwise miss out on a much more favorable outcome that could be had if the case was properly handled by a DUI lawyer.
My response wasn’t intended to ridicule the writer who contacted us, but rather force some deeper thinking. Here’s what I wrote:
I’m not trying to sell anything, but whatever you do, DON’T go this alone. If the best you can do is get a court-appointed lawyer, that’s still 10,000 times better than trying to handle this on your own. I can “do” my own taxes, but my CPA knows a million things I don’t, so when he’s done, I get deductions and depreciation write offs I’d never know existed.
Do you know the difference between reasonable suspicion for a traffic stop, and the probable cause needed to arrest? What about the “approved” field sobriety tests? Are you familiar with the science of chemical testing (breath/blood)?
What about the admissibility of evidence? Do you know what to look for as you review any police video? Are you comfortable with criminal procedure in court? Do you know the idiosyncrasies of the Judge who will preside over your case?
If not, then get a lawyer. As I noted, if you can’t afford one, then request court appointed counsel. There is an old saying about attorneys: “The lawyer who represents himself has a fool for a client.” That, of course, pre-supposes the person being talked about IS a lawyer.
If you do decide to hire your own counsel, then call around. Comparison shop.
Jeff
As a general rule, I dislike the tactic of asking questions a person can’t answer. It often seems like nothing more than a way to scare someone, or make them feel ignorant. My goal in that response, however, was to quickly make the point that there is a whole LOT the writer simply could not know about handling a DUI case. Indeed, even a licensed attorney without any criminal and/or DUI experience is not equipped to properly handle an OWI (“Operating While Intoxicated,” the actual legal term for drunk driving in Michigan) charge.
Although there is a Judge who oversees everything, it is NOT his or her job to evaluate the evidence and/or challenge it. The Judge isn’t the defense lawyer, nor the prosecutor. It is solely the defense lawyer’s responsibility to protect the client’s interests. If a person represents themselves, then, by playing lawyer, then they assume that obligation. Among the rights people have is the right to be wrong.
The prosecutor, while ethically bound to do “justice,” is still a prosecutor. He or she is not going to evaluate the evidence to find some way to get a case dismissed.
A good DUI lawyer will either get you completely out of the charge, or to otherwise avoid as many of the legal penalties and negative consequences possible. That’s done by understanding EVERYTHING about handling DUI cases. This means EVERYTHING – from the law regarding traffic stops and police contact, field sobriety tests, formal chemical (breath or blood) testing and analysis, to every aspect of criminal law and legal procedure.
To be sure, it’s not like most DUI cases are so catastrophically flawed that they’re easy pickings for a defense lawyer to get dismissed. However – and this is huge – there are plenty of little things that an experienced DUI lawyer can find and use to force a better outcome.
Sometimes, there is enough wrong with a case to get it knocked out. Other times, even when there’s not enough to get a case dismissed, things can be found and used to negotiate a better plea bargain. As with everything, a person either bargains from a position of strength, or not.
If someone who doesn’t know how to challenge evidence (or, for that matter, what evidence can be challenged) is sitting across from a prosecutor, what advantage do they have? Essentially, if a person is unable to put up a meaningful fight, then they can only take what’s offered by the prosecutor, if anything.
Even if the evidence against someone is beyond dispute, a DUI lawyer can still hold out and insist on a trial. Trials are a lot of work. Many years ago, plea bargains were invented to more quickly clear the caseload and avoid trials, even in cases that were otherwise “airtight.”
Someone who doesn’t know how to try a case is basically a sitting duck, waiting to get steamrolled in a legal proceeding way beyond their ability to meaningfully participate.
How will anyone who doesn’t try cases in court (especially a non-lawyer) even present the slightest threat to a prosecutor? That person doesn’t have a working knowledge of the rules of evidence. How is he or she going to object to any evidence, the way it’s presented, or any questions asked by the other side?
The point is that anyone trying to handle a DUI on their own won’t be able to seize upon anything that can help him or her negotiate a better outcome. At best, all they can do is hope that the prosecutor feels some sympathy. And to be sure, hoping for a sympathy “break” is NOT any kind of defense strategy.
Beyond the court proceedings and legalities involved, it’s important to know that, under Michigan law, every person convicted of any kind of alcohol-related traffic offense MUST undergo a mandatory alcohol screening before being sentenced. The screening is a written “test,” and every answer has a point value. The total number of points a person gets is added up and compared to a scoring key.
That key basically “diagnoses” whether he or she has, does NOT have, or is otherwise at risk to develop an alcohol problem.
The screening is administered by the probation department as part of a larger process called a “PSI,” short for “pre-sentence investigation.” As part of the PSI, the probation officer will interview the person and gather facts about the DUI case. In addition, he or she is going to do a work-up of the person’s past, including his or her life’s circumstances (where and to whom he or she was born, where and with whom he or she was raised, level of education, employment history, and marital or relationship status, among other things) along with any prior record.
All of this is then used to formulate a written recommendation that is sent to the Judge advising what kind of sentence should be imposed. The recommendation will usually suggest things like length of probation, kinds of classes, counseling or treatment the person should be required to complete, and any other things that he or she must or must NOT do during that time.
Given that just about every Judge will follow the sentencing recommendation, if not to the very letter, then rather closely, getting a more favorable recommendation is the absolute key to getting a better outcome.
A person shouldn’t just bumble into this, hoping for the best. Yet that’s exactly what happens when someone handles their own DUI, or hires some lawyer who doesn’t have a lot of experience in this practice area. “DUI lawyer” is a title that’s earned.
A key motto of our firm is that “Success in a DUI case is best measure by what does NOT happen to you.” We take someone’s money to make their situation better. This involves a lot more than merely “protecting your rights.” By itself, that is one of the most hollow, meaningless and overused phrases in legal marketing. In practice, it can mean little more than paying a lot of money to have someone with a law degree keep you company while you get banged around through the court system like pinball.
Make no mistake, money is important. No matter what, you can’t get top-shelf legal services at bargain basement prices. Nobody will ever get what they don’t pay for.
HOWEVER – and this is huge – it is also very easy to get sucked into paying top-dollar for a lawyer and only getting average services (like someone who will “protect your rights”). Paying a lot doesn’t mean getting a lot. A person needs to do some comparison shopping before hiring a DUI lawyer.
Can a person handle his or her own DUI case and get through it?
Absolutely.
Is it likely that he or she will miss opportunities along the way to get an even better outcome?
Again, absolutely.
“Getting through” a case is very different than getting the best outcome possible.
In my response to the emailer, I included the familiar quote that “the lawyer who represents himself has a fool for a client.” Notice that anytime a lawyer (or police officer, or Judge, or prosecutor) gets in trouble, the first thing they do is hire their own lawyer. It may be that a skilled lawyer who has to hire an outside attorney to represent him or her may have more insightful questions of his or her counsel, but anyone who has to go to court needs someone detached and objective to handle his or her case.
Try as one might, a person simply cannot be objective about his or her own matter. That’s why physicians seek treatment from other physicians, and why lawyers hire other lawyers.
I certainly hope that the person who wrote that email follows my advice and gets some kind of lawyer, even if he or she has to settle for court-appointed. If not, I would be willing to bet that, whatever the outcome of his or her case, it won’t be as good as it could have been with an attorney.
If you are facing a drunk driving charge and looking for a DUI lawyer, or just wondering whether you should hire one, be a wise consumer and read around. Pay attention to how different lawyers break down the DUI process, and how they explain their various approaches to it.
This blog is a great place to start. It is fully searchable and updated weekly. To-date, I have written and published over 600 articles in the DUI section. There is more useful information to be found here than anywhere, but don’t take my word for it – see for yourself.
When you’ve done enough reading, start checking around. You can learn a lot by speaking with a live person. If your case is pending in the Metro-Detroit area (meaning anywhere in Wayne, Oakland, Macomb or the surrounding counties), make sure you give our office a ring as you explore your options.
All of our consultations are free, confidential, and done over the phone, right when you call. My team and I are very friendly people who will be glad to answer your questions and explain things. We’ll even be happy to compare notes with anything some other lawyer tells you.
We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m., at either 248-986-9700, or 596-465-1980